On October 10, 2017, the Second Circuit summarily affirmed NB v. New York City Department of Education, No. 15 Civ. 4948, 2016 WL 5816925, 68 IDELR 228 (S.D.N.Y. Sept. 29, 2017), aff’d sub nom.N.B. v. New York City Department of Education, No. 16-3652-cv, 2017 WL 4511382, 70 IDELR 245 (2d Cir. Oct. 10, 2017). The case involved a 12-year-old with autism and food allergies. The Department devised an IEP for the child for the 2012-13 school year, but the parents rejected the IEP and placed her in the Rebecca School, a private institution she had attended the previous year. They filed a due process complaint seeking payment of the tuition. The school uses a method of instruction for students with autism known as Developmental, Individual Difference, Relationship/Floortime (“DIR/Floortime”).

The impartial hearing officer (IHO) ruled that the Department denied the child a free, appropriate public education because it did not introduce the IEP into evidence at the hearing. The IHO nevertheless denied reimbursement to the parents, saying they lacked standing to obtain it. The state review officer (SRO) found that the IEP was properly in evidence before the IHO, and that the parents could seek reimbursement, but ruled that on the merits the IEP provided the child an FAPE. The parents appealed to district court. Judge Torres granted summary judgment to the Department, agreeing with the SRO that the IEP sufficiently addressed the child’s allergies, the record showed that the public school designated by the Department could make accommodations for the allergies, and the IEP sufficiently addressed the child’s sensory needs. The district court further held that the parents’ contention that the child needed the DIR/Floortime methodology to learn was not supported by the record. True, the child had made progress with DIR/Floortime, but she had also made progress when another methodology was used. The court said the parents did not offer any evidence that was not speculative that the public school was unable to implement the DIR/Floortime-specific goals and objectives of the IEP. The court deferred to the SRO on the adequacy of a 6:1+1 (six students, one special education teacher, one paraprofessional) student-teacher ratio.

The parents’ appeal to the Second Circuit contended that the IEP was not appropriate because it did not call for the DIR/Floortime method of instruction and goals, the IEP’s student-teacher ratio and the selected public school were not compatible with DIR/Floortime, and the environment of the designated public school would be intolerable in light of the child’s sensory and dietary needs.

The Second Circuit decision, which is unpublished, rejected the parents’ contentions, deferring to the decision of the SRO. The per curiam panel of Judges Chin, Droney, and Restani expressed agreement with the parents that the IEP implicitly recommended DIR/Floortime methodology when it adopted the language and goals established by the private school. But, said the Court, the SRO reasonably concluded that the goals did not specifically mandate use of DIR/Floortime, and that the DIR/Floortime methodology was not the only way to accomplish the goals. The court also deferred to the SRO on the issue of the student-teacher ratio, saying the record did not support the parents’ contention that the IEP’s proposed student-teacher ratio could not implement DIR/Floortime or otherwise provide the child appropriate education. The parents’ challenge to the selection of the public school was rejected as speculative; the court further said the record indicated that school could make accommodations for the child’s food allergies and the IEP adequately provided for her sensory needs.

DIR/Floortime has been the subject of a number of cases in the district courts. The district court summarized the prior caselaw:

Courts in this district have disagreed as to whether an IEP’s incorporation of DIR-specific goals acts as an implicit adoption of DIR methodology; the current and better view is that it does. Compare GB[v. N.Y.C. Dep’t of Educ.], 145 F. Supp. 3d [230,] at 256 (ruling that DIR-specific objectives could not be implemented by a school that did not utilize DIR), andFB v. N.Y.C. Dep’t of Educ., 132 F. Supp. 3d 522, 550-51 (S.D.N.Y. 2015) (finding that an IEP “adopt[ed] that methodology” and rejecting a contrary SRO opinion), with A.D. v. N.Y.C. Dep’t of Educ., No. 12 Civ. 2673, 2013 WL 1155570, at *12 (S.D.N.Y. Mar. 19, 2013) (rejecting the parents’ argument that the IEP incorporated DIR methodology). What distinguishes this case from GB and FB, however, is that the Parents fail to offer any non-speculative evidence that P369K could not have implemented the IEP’s DIR-specific goals and objectives. See, e.g., T.C. v. N.Y.C. Dep’t of Educ., No. 15 Civ. 3477, 2016 WL 1261137, at *14 n.22 (S.D.N.Y. Mar. 30, 2016).

NB, 2016 WL 5816925, at *6 (footnote omitted). However, the district court went on to say in a footnote:

[T]he Court observes from the record in this case that the DOE maintains a policy never to recommend a specific methodology in a student’s IEP. Such a blanket policy not to consider an educational placement in appropriate cases is contrary to the procedural requirements of the IDEA. See M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 257 (2d Cir. 2012) (per curiam) (comparing a permissible “decision to rely heavily on a single method” with an impermissible policy “that the district would not consider a [given] placement in an appropriate case”); S.Y. v. N.Y.C. Dep’t of Educ., No. 16 Civ. 6277, slip op. at 20-22 (S.D.N.Y. Sept. 28, 2016); E.H. v. N.Y.C. Dep’t of Educ., 164 F. Supp. 3d 539, 551-53 (S.D.N.Y. 2016). To the extent that the DOE tries to walk back its policy in its reply brief to this Court, describing it as merely a default or “general practice,” that position is not borne out by the record in this case.

Id. at n.4 (citations to record omitted). In light of these developments, there is every reason to expect disputes over DIR/Floortime methodology to continue.

There is nothing in the IDEA that requires an IEP to include specific instructional methodologies. [Analysis and Comments to the Regulations, Federal Register, Vol. 71, No. 156, Page 46665 (August 14, 2006). A parent can request a specific instructional methodology and have it considered by the IEP team. Whether to incorporate it into the student’s IEP is within the discretion of the IEP team as a whole. See Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 42 IDELR 109 (6th Cir. 2004), cert. denied, 546 U.S. 936 (2005).] There may be circumstances in which the particular teaching methodology that will be used with the student is an integral part of what is individualized about a student education. In those circumstances, the teaching methodology will need to be discussed at the IEP meeting and incorporated into the student’s IEP. [J.L. v. Mercer Island Sch. Dist., 575 F.3rd 1025, 52 IDELR 241 (9th Cir. 2009); see also Letter to Anonymous, 49 IDELR 258 (OSEP 2007); Analysis and Comments to the Regulations, Federal Register, Vol. 71, No. 156, Page 46665 (August 14, 2006); Letter to Wilson, 37 IDELR 96 (OSEP 2002). An LEA, however, is not required to provide the parents’ preferred teaching methodology when it is established that the recommended program meets the applicable statutory standard. Dreher v. Amphitheater Unified Sch. Dist., 22 F.3d 228, 20 IDELR 1449 (9th Cir. 1994). Courts typically defer questions of educational policy and methodology to the States. See, e.g., M.M. v. Sch. Bd. of Miami-Dade County, 437 F.3d 1085, 45 IDELR 1 (11th Cir. 2006) (reminding the parents that the IDEA does not permit parents to challenge an IEP “on the grounds that it is not the best or most desirable program for their child”); Joshua A. v. Rocklin Unified Sch. Dist., 319 F. App’x 692, 52 IDELR 64 (9th Cir. 2009) (unpublished) (upholding an LEA’s use of an eclectic approach that was not itself peer-reviewed); Bend-Lapine Sch. Dist. v. D.W., 152 F.3d 923, 28 IDELR 734 (9th Cir. 1998) (stating that an LEA is not required to “cooperate” with the parents when deciding what methodology was to be used).] In general, however, specific day-to-day adjustments in instructional methods and approaches that are made by either a regular or special education teacher to assist the student achieve his or her annual goals would not normally require action by the student’s IEP team. [Analysis and Comments to the Regulations, Federal Register, Vol. 64, No. 48, Pages 12552, 12595 (March 12, 1999).]